Friday, October 31, 2008

The prestigious Field Poll has released polling data which reveal that support for Proposition 8, which would amend the California constitution to prohibit same-sex marriage, has grown substantially since the summer. According to the latest poll, 44% of voters support the measure; 49% oppose it; and 7% are undecided. The poll has a margin of error of 3.5%, which basically makes the contest a dead heat.

The closeness of the vote on Proposition 8 differs dramatically from the state's presidential contest. A Field Poll released earlier this week gives Obama a whopping 22-point lead over McCain in California. This enormous advantage for Obama, however, has not translated into similar success for opponents of Proposition 8, despite the fact that the Democratic presidential candidate himself opposes the measure.

In an earlier blog post, I argued that Democrats who believe that a November Democratic Sweep would represent a dramatic shift in the nation's political ideology are deluding themselves. In addition to the quality and skillfulness of Democratic candidates, the party's success stems, in large part, from GOP exhaustion, the declining economy, the poor state of the war, and the historically low approval ratings for President Bush. The fact that California, a pretty safe state for liberal candidates, might pass an anti-gay constitutional amendment demonstrates that social conservatism remains attractive for a significant portion of the electorate, even though many of those same voters support Obama's candidacy. For more on this subject, see: "Split Ticket? What California's Battle Over Same-Sex Marriage Means for U.S. Liberals."

My fellow Democrats need to discard their mistaken belief that a seismic shift in the nation's general ideology has occurred. With all of the irrational exuberance safely behind them, they can use their immense talents to develop strategies to persuade a center-right American public to embrace center-left political agendas. The steamroller approach that some Democrats now advocate (see, e.g., HuffingtonPost essay urging Democrats to ignore the GOP and my pointed response) will only invite a serious electoral backlash -- just as the GOP's excesses during the last 8 years have now created.

In a prior blog entry, I chastised my liberal colleagues for making a fuss over Sarah Palin's shopping spree for campaign attire. Focusing on her clothing and related expenses singled her out as a female candidate. The media have not similarly obsessed over the fashion of male candidates, and the public does not know or seemingly wish to know how much their suits and shoes cost.

By contrast, Hillary Clinton's pantsuits became a national obsession during the Democratic primaries. Clinton's treatment provides a context for evaluating public discourse over Palin's appearance. My argument that media treatment of her Palin's clothes stemmed from gender bias also seemed logical in light of the astronomical cost of this election. This is the most expensive presidential election in history. Although the candidates have spent over $2.5 billion, Palin's $150,000 fashion allotment raised eyebrows. But the extraordinary fundraising and spending by Obama's campaign has only thrilled the media.

Today, the Associated Press reports the findings of a study by Joan Chiao -- a psychologist at Northwestern University -- which confirms the vulnerability of women politicians to disparate treatment related to their appearance. Specifically, the study finds that voters desire "competent" male candidates, but they want "competent" and "attractive" female candidates. Although many women in the study also preferred male candidates they deemed "approachable," both men and women fixated on women's (but not men's) outward appearance in assessing their fitness for office.

Because only college students participated in the study, it is unclear whether the results would vary with age or education levels. But the study lends credibility to the notion that both Palin and Clinton have experienced gender bias in their respective campaigns.

The study could also support an argument I made in response to a reader who discounted sexism against Palin. The reader discounted the operation of sexism against Palin, by noting that John Edwards received similar treatment when he sported a costly, stylish haircut. I argued then -- and I reiterate now, in light of the study -- that Edwards probably breached gender expectations by excessively focusing on his appearance. Whereas a woman would probably receive criticism for not getting a stylish haircut, Edwards was punished for doing so. His metrosexual moment disrupted gender norms. With Palin, however, people exploited gender norms about women's appearance, which probably led the Republicans to "dress up" Palin in the first place, to her detriment. Although society expects women to pay more attention to style than men, some people sought to punish Palin for doing so.

I would also argue that a similar perverse pattern happened with Clinton. Women of her generation had to prove that they were as "tough" as men to make it in professional life. During the primaries, her harshest critics called her tough and cold, common stereotypes used to challenge women who occupy or who seek positions of authority.

Thursday, October 30, 2008

Moments like today help me appreciate the danger of having the suffix "wing" attached to your ideological preference (despite having previously described myself a leftwing progressive). Jesse Berney, an outspoken Clinton and now Obama supporter, has a piece of advice for Democrats, which he has posted on Arriana Huffington's blog: ignore the GOP! Berney says that the Democrats should do the exact opposite of what Obama has promised in his campaign (unity and change) because Republicans (all of them?) have attempted to demonize Obama as a radical, socialist, buddy of terrorists, etc. For this reason "bipartisanship is not an option for them." According to Berney, if the Democrats sweep the election -- whether or not they reach 60 in the Senate -- they should dismiss Republicans as irrelevant:

Democrats should just ignore them.

Ignore Republicans in Congress. Ignore their silly amendments, ignore their calls for hearings, ignore the speeches they give, and ignore them when they complain about being ignored.

Ignore their right-wing echo chamber. Ignore Rush Limbaugh and MattDrudge and Fox News and their newspapers and blogs. Ignore it when themainstream media amplifies them.

Ignore the daily talking points and the noise. Ignore the inevitable anti-Obama conspiracy theories. Ignore the horse race as their contenders jockey for position in 2012.

Ignore them all and just... govern.

If things go well on Tuesday, we'll have a Democrat in the White House and big Democratic majorities in both Houses of Congress. Even if we don't reach the magic number in the Senate, we can probably get 60 votes on major issues when we need them.

That means President Obama can set a bold, progressive agenda and Congress can pass it with little or no fuss.

Interesting. I think I should start an official rolling tally of the number of white liberal guys who have convinced themselves that conservatism and the GOP have died. Apparently, they mistakenly believe that the mere fact that the U.S. will likely elect a black Democratic president proves that left liberalism has swept the nation. For most of the year, I was one of the few liberals who questioned the popular view among liberals (especially academics) that electing Obama would represent a triumph over all manner of evil -- especially racism. The recent wave of liberal euphoria and political fantasies demonstrates that this contrarian conversation must continue and must get louder.

In many ways, Obama's victory would represent a symbolic advancement in race relations. And while I believe that symbols can inspire action, the fact that people agree on a symbol does not guarantee their unified political action (or any action at all). I just read a post on the blog Open Left which announces that a Field Poll shows Obama up by 22 in California. Despite this O-surge in the Bear State, Proposition 8, the anti-gay marriage initiative, has a strong chance of passing. This indicates to me that the blue revolution is largely an electoral victory, not a demand for comprehensive ideological changes.

The Democrats' probable victory results in large part from Bush/GOP exhaustion. Standing alone, it does not translate into the implementation of a leftist social or economic agenda, and it does not guarantee that a majority of the population would support such a platform. Berney's advice, if followed, would likely cause a 2010 repeat of the Newt Gingrich revolution that punished perceived liberal excess of the Clinton administration -- despite Clinton's fairly centrist (and even conservative) leanings. The liberal hype and gloating which gave us Gingrich pales in comparison to what is happening today.

I guess having your ideas validated provides an emotional boost -- even for staunch dissenters. Accordingly, I was pleasantly surprised to find this essay by Joshua Frank, a co-founder of the website Dissident Voice (I just added its feed -- see links in left column). Frank offers yet another wake-up call to liberals and progressives who seem seduced into believing that the Democrats' electoral success (as measured by pre-election polls) indicates that the country has slain social conservatism and that an Obama-Pelosi-Reid national government will usher in a dramatically egalitarian society that does not discriminate against gays and lesbians, contains no racially identifiable poverty, that fiercely combats sexism and patriarchy, and where economic justice rules. The essay has some rich moments, like this one, which make it a good read:

What makes the Democrats believe that they even deserve [progressives']support now? President Bush has indeed been bad, but his most egregious policieswere upheld and supported by the majority of Democrats. They gave Bush the greenlight to whack Saddam while they controlled the Senate. They supported thePATRIOT Act (Obama voted for its reconfirmation), the War on Terror, Bush’sincreased Pentagon budget, a no-strings Wall Street bailout and two awfulSupreme Court confirmations. You may also remember that two years ago we ushered Democrats back into office with the belief that they might actually fight Bush on Iraq. Instead we’ve had nothing but complicity, with Democrats timeand again supporting increased war funds.

I hope I’m not alone in saying that we deserve more than lofty rhetoric about “action” and “hope.” We deserve a program for real progressive change — the kind Democrats and Barack Obama will not bring as long as we give them our unconditional support.

THE FACTS: Independent analysts say both Obama and Republican John McCain would deepen the deficit. The nonpartisan Committee for a Responsible Federal Budget estimates Obama's policy proposals would add a net $428 billion to the deficit over four years — and that analysis accepts the savings he claims from spending cuts. The nonpartisan Tax Policy Center, whose other findings have been quoted approvingly by the Obama campaign, says: "Both John McCain and Barack Obama have proposed tax plans that would substantially increase the national debt over the next 10 years." The analysis goes on to say: "Neither candidate's plan would significantly increase economic growth unless offset by spending cuts or tax increases that the campaigns have not specified."

Predictably, most media have offered very effusive praise for Obama's infomercial, including those that received millions to air it. ABC's George Stephonopolous calls it a "virtuoso performance," and the San Francisco Chronicle describes it as a "classic closing commercial."

But buried under the plethora of feel-good reviews, CBS correspondent Wyatt Andrews offers a blunt "reality check," which scrutinizes the multitudinous promises made during the Obamercial. Andrews argues that "very few independent economists believe [Obama] has identified the savings needed to offset his remarkable list of tax credits, tax cuts and spending pledges." After detailing the estimated cost of Obama's increased spending and tax reduction platform (sounds like Bush), Andrews concludes that Obama "gave us a very compelling vision with his ad buy tonight. What he did not give us was any hint of the cold reality he's facing or a sense of how he might prioritize his promises if voters trust him with the White House." In the interest of being fair, neither does McCain (see this blog entry).

Wednesday, October 29, 2008

Two Politico.Com reporters have conceded that the media coverage of the election has "hosed" McCain. Despite denials by others in the media, John F. Harris and Jim VandeHei admit the following:

In the closing weeks of this election, John McCain and Sarah Palin are getting hosed in the press, and at Politico.

And, yes, based on a combined 35 years in the news business we’d take an educated guess — nothing so scientific as a Pew study — that Obama will win the votes of probably 80 percent or more of journalists covering the 2008 election. Most political journalists we know are centrists — instinctually skeptical of ideological zealotry — but with at least a mild liberal tilt to their thinking, particularly on social issues.

I would say that this started prior to the "closing weeks" of the campaign, but I find their honesty refreshing. Nevertheless, instead of criticizing the media for failing to exhibit necessary detachment in something as critical and delicate as electing a president, they place blame on John McCain himself. Specifically, they assert that the media are punishing McCain for limiting their access to his campaign. Interesting. I did not know that media ethics varied depending upon whether the particular journalist was upset with the candidate. As a lawyer, I cannot refuse to offer zealous advocacy to a client if I end up not liking the client -- and as a law professor, I certainly cannot grade students differently based on my own personal tastes. Maybe people in the news media should rank below lawyers in the "most disfavored professions" rankings.

I am a Democrat, and I will proudly vote a Democratic ticket this year, but I am concerned about media bias because it has not always benefited Democrats, as I argued in a prior blog entry. This same media rode in the tanks with the military during the war, failed to criticize the Republican witch hunts during the Clinton administration, and did not critically analyze Reagan's claim that Carter (rather than the oil price shocks) ruined the economy. The Politico authors admit, in fact, that the media's fascination with Obama does not reflect an ideological shift because most journalists remain centrists. Accordingly, Democrats should let go of their pride and admit the truth. Most Democrats I know will tow the line if they believe that admitting mistreatment of Republicans could reflect badly upon Obama. I actually thinks that it makes us look better.

In a series a blog posts, I have criticized the idea that Obama's election and the expansion of Democratic control in Congress means that the nation has swung to the left and that the Democrats can use their power to implement a very liberal agenda (see these links: Democrats and Social Conservatism; Sober Look at a Democratic Sweep; and 2008 Is Not 1964). This argument overlooks: (1) the lack of a coherent liberal ideology among the new "Obama Generation" of voters; (2) the fact that McCain led Obama in many polls prior to the Wall Street implosion; (3) that Democrats have only won three presidential elections since 1964; (4) that even in blue states, like California, Democrats still embrace socially conservative agendas; and (5) many new Democrats in Congress will come from conservative states and have run on conservative political platforms.

I have also observed that most of the commentators I have noticed announcing the death of old white male heterosexual power are members of that very demographic. Women, people of color, gays and lesbians, and the poor are far more guarded about the prospect for sweeping change in the lives of disadvantaged people. A couple of news articles confirm (at least anecdotally) that people of color remain cautious in their optimism surrounding the election; many of them do not even want to allow themselves to believe that Obama will win, despite his lead in the polls. They certainly have not predicted that the nation has fundamentally rejected conservatism. For further analysis, see the following articles: New York Times and Dallas Morning News.

Most of today's polls, including one sponsored by the liberal blog Daily Kos (only 26% of the Daily Kos sample of likely voters is Republican), show the presidential race is tightening. McCain, however, still trails Obama in all of them. The Rasmussen poll is now down to a 3-point race, as is GWU. Daily Kos is now at 6 points, and Zogby stands at 5. A week ago, Daily Kos reported a 10-point deficit for McCain. See Pollster.Com for all of the latest poll updates and commentary.

The next president will face many fiscal constraints. With a soaring debt, credit crisis, spending obligations from two wars, and a federal bailout of the financial sector, the introduction of new spending programs and tax cuts that both candidates promise would strain an already stressed budget. Amid the public debate over which party will better manage the economy, today's New York Times reports that many experts do not expect either candidate to fulfill his campaign promises without hurting the deficit.

Obama promises to maintain Bush's tax cuts for all Americans -- except for those making in excess of $250,000. He also plans to create a federally sponsored health care plan, turn the war against terrorism to Afghanistan, invest in alternative energy exploration, and other initiatives. McCain promises "no new taxes," and he wishes to create a governmental health plan, fight terrorism, and propose solutions to the energy crisis as well. Both of these plans deprive the government of revenue, by maintaining tax cuts; both also increase federal spending. This combination inevitably would raise deficit levels.

Obama has stated that the additional taxation of higher income earners can fund his programs, but many economists seriously doubt this. McCain's spending initiatives are less ambitious than Obama's, but his tax plan would generate less revenue. Although some experts believe that McCain's plans could have a greater negative impact on the deficit, they all agree that neither candidate's policy's -- if fulfilled -- would create a surplus. In other words, they are both attempting to deceive the public on this issue. They will either fail to spend as much money as they promise or will raise taxes -- or will do neither of these things and add to the soaring budget deficit and national debt. But these sober options do not win votes on the campaign trail.

Tuesday, October 28, 2008

South Dakota already has one of the lowest rate of abortions in the country. Only one medical facility in the state provides abortion services, and Planned Parenthood essentially "imports" those doctors to the state. Local doctors do not want to earn a reputation as "baby killers."

In 2006, the South Dakota legislature passed a law that banned all abortions unless they were necessary to protect the "life" of the mother. This law blatantly violated Supreme Court doctrine, which states that abortion restrictions require life and health exceptions, and that prior to viability, states cannot impose an "undue burden" on a woman's right to terminate her pregnancy. Banning abortion altogether is indisputably an undue burden. Although the governor signed the legislation, voters repealed it in a referendum.

On November 4, South Dakotans will consider a new abortion law that purportedly avoids a constitutional problem because it contains a health exception. This law is still unconstitutional under current doctrine. I emphasize "current" because a four-justice bloc (Roberts, Scalia, Thomas, and Alito) on the Supreme Court wants to overrule Roe v. Wade altogether, while another (Kennedy) has embraced both liberal and conservative positions on the issue.

In addition to raising constitutional concerns, the new law treats women callously and seriously disregards their health and privacy. Below, I discuss some of the more offensive provisions.

A "Near-Death Exception," Masquerading as "Health Exception"

The proposed law indeed contains a "health exception," as required by current Supreme Court doctrine. But it narrowly defines a threat to the mother's health as "a serious risk of a substantial and irreversible impairment of the functioning of a major bodily organ or system of the pregnant woman should the pregnancy be continued and which risk could be prevented through an abortion." This is the most stringent interpretation of a health impairment I have seen in any proposed abortion statute. It looks like a "near-death" provision, rather than a health exception. This provision contradicts current caselaw which basically leaves it up to physicians to determine whether an abortion is medically necessary due to a physical or psychological condition of the mother.

Cruelty to Rape and Incest Victims

The proposed law is probably the most obscene in its treatment of victims of rape and incest. For sexual assault victims, the law permits an abortion regardless of whether the pregnancy threatens the woman's life or health. But exercising the right to choose in this extremely delicate situation comes with many intrusive preconditions.

First, the proposed measure would require that these women have an abortion within 20 weeks (shorter than the normal 6 months) after their "last menstrual period." Furthermore, prior to performing the abortion, the doctor must call law enforcement officials and report the woman's name, address, and date of birth, the date and location of the assault, the perpetrator's name and address (if known), or (if not) a description of the perpetrator. To make matters worse, the provision would require doctors to obtain DNA samples from the woman and fetus and turn them over to law enforcement.

Incest victims would have to disclose to law enforcement their familial relationship with the perpetrator. The proposed statute defines an incest victim as a woman under the age of 18. Subjecting minors to these procedures is particularly cruel and insensitive, particularly the requirement that the victim provide the name of the assailant.

Probable Litigation

Recent polls indicate that the measure stands a great chance of passing. If so, the law would certainly generate an immediate lawsuit and would place the issue of abortion back in federal courts. Neither presidential candidate has discussed this issue prominently (except for during the last debate), but the composition of the Supreme Court could determine whether Roe, already weakened, remains "good law." My guess is that under the current composition of the Court, Kennedy would join the liberals and strike down this law, but predicting the outcome of cases is a very risky business. Although the Court's doctrine on abortion tends to reflect public opinion (disfavoring partial-birth and late-term abortions, but wanting women otherwise to have a right to choose), a new conservative appointee could very well provide the majority necessary to overrule Roe.

Although Obama supporters tried to portray him as the antithesis of "the Clintons," whom they negatively labeled "Billary," I have always found similarities between the two candidates and the two "first families." They both have power wives, are "great communicators -- yet very lawyerly," both promised to restore economic hope, and both candidates and their wives provoked irrational ire from the Republicans. Today's Talking Points Memo blog has made the comparison as well. Check out this article. It is an interesting read.

While the public carefully scrutinized Sarah Palin's $150,000 fashion budget, they forgot to place it in an appropriate context: This presidential election has cost far more than any other election in U.S. history. According to statistics from the Center for Responsive Politics, the presidential election will cost around $2.4 billion. When you factor in Congressional races, that number jumps to $5.4 billion. Palin's wardrobe represents a tiny .00625% of the total dollars spent to finance this year's presidential election. The biggest sign of campaign riches will come with Obama's $1 million per network infomercials which air tomorrow on ABC, CBS, NBC, Fox, and Univision.

Monday, October 27, 2008

Professor Nan Hunter has brought her learned perspective to the upcoming election. Hunter believes, as do I, that the Democrats' success says more about Bush than Obama and that the country has not moved sharply to the left:

The Obama wave, possibly a tsunami, is not happening because all those folks who
voted for Bush, the other Bush, and Reagan have suddenly adopted the mindset of
from each according to his means, to each according to his needs. Conversion
isn't the game here; Americans are looking for a way to express how fed up and
even frightened they are from the Bush regime. Bush loved to posture as the
"bring it on" president, but he now seems more aptly characterized as a
multi-dimensional failure - from Iraq to Katrina to a desperate bail-out when
the economy tanked. In other words, this is an anti-Bush, not a pro-Obama wave.
The frat boy hour is over; we need an adult back in charge.

If the constant movement in the polls has you confused, you are not alone. Every time I hear McCain saying that he will win, or that his campaign is exactly where it needs to be, I think he is foolishly channeling Rudy Giuliani. But maybe he is only reading the few polls that favor him. Today's Rasmussen poll has the race within 5 points, while GWU is within 3 points. Today's Hotline poll has Obama up 12 points, while Daily Kos has him 8 points ahead. For most of last week, Obama had a pretty sizable lead. For more extensive coverage and debate, see Pollster.Com.

A new ABC News poll suggests that McCain's age influences voters far more than Obama's race. Although polls from earlier this summer indicated that a substantial number of voters would take race into account, recent polls indicate that this factor has declined in significance. 90% of voters in the ABC News poll say that they are "comfortable" with Obama's race.

The poll, however, shows that voters do take McCain's age into account. 50% of voters say that they are comfortable with McCain's age, while 49% are not. The same poll gives Obama a 52-45 lead over McCain, which could possibly mean that many Obama supporters have sided with the candidate in part due to concerns over McCain's age.

My take: People often understate their racial viewpoints in opinion polls, so observers should take that fact into account. Nevertheless, Obama has run as a "racially transcendent" candidate, and although he has mentioned race in symbolic terms ("historic" candidacy), he has basically avoided laying out a platform that addresses racial inequality. The Democratic convention stressed unity, getting rid of Bush/McCain, and diversity -- not race policy. Given the tenuous support of liberal race policy among voters, this strategy probably helped his candidacy tremendously.

Also, the media have focused extensively on covering and stigmatizing racial bias among voters which could actually have helped negate the operation of those biases against Obama. Studies show that people who harbor latent racial bigotry are more likely to act in a race-neutral manner if they confront and analyze those views. By contrast, the media failed to give much attention to gender bias until Clinton herself politicized the question. Many people in the news media, however, reacted by suggesting that Clinton was just gaming the subject. This differed from their reaction to Obama's speech on race, which he made during the height of the Reverend Wright controversy.

I have not seen much coverage at all on the issue of age discrimination. But Obama's campaign has called McCain "erratic" and "out of touch"; it also made a commercial that said he did not know how to use email, and which showed unflattering vintage footage of him. Many commentators believe these tactics sought to portray McCain as too old for the presidency.

Also, perhaps society views age as more relevant than race. The Supreme Court treats age as socially relevant and for this reason has held that age discrimination does not generally violate the constitution. Liberals on the Court, however, disagreed with that ruling. The Court, by contrast, treats race as socially irrelevant and as an improper basis for most social policy. Maybe the public agrees with this dichotomous treatment of the two subjects. Given the results of this poll, I wonder whether McCain will talk about his age in the last remaining days before the election.

The University of California at Irvine School of Law will open in the fall of 2009. The law school has secured funding from a donor to offer three-years free tuition to all of the students in its very first entering class. Attracting quality students often proves challenging for new law schools. This move should help in that regard, in addition to creating buzz for the school. For more on the story, see this link.

The most recent polls have shown increasing support among Californians for the passage of Proposition 8, which would amend the state's constitution and define marriage in heterosexual terms. Indeed, many gay rights advocates now fear that the initiative will pass, reversing a recent California Supreme Court ruling which holds that the prohibition of same-sex marriage denies equal protection to gays and lesbians.

In a recent blog post, I analyzed a California anti-gay group's effort to mobilize black opposition to same-sex marriage in order to strengthen support for the initiative. The organization believes that higher-than-normal black participation in the election, due to Obama's candidacy, could provide crucial votes for the measure. While this strategy cynically attempts to exploit homophobia among blacks in order to constitutionalize bigotry, the closeness of the vote shows that it might prove successful. Although I have not seen any recent polls which provide a racial breakdown of the support for Proposition 8, earlier studies have shown that in every state, blacks oppose same-sex marriage more than the general population.

The contentious California battle over same-sex marriage also demonstrates that, despite their renewed electoral power, Democrats remain divided over many issues. Although the potential for a Democratic sweep has caused many liberal commentators to opine about the "death" of social conservatism, California proves that their exuberance is misguided. Obama, like Democrats before him, will win California by a very large margin. Although U.S. culture often exaggerates the extent of California's liberalism, the state, by and large, is blue territory. And while Californians in the past have voted to prohibit affirmative action and bilingual education, it has been somewhat more progressive on issues of sexual orientation. The closeness of the polls on Proposition 8 suggest that Democrats, even in one of the bluer states, remain split over social issues.

If Californians reject same-sex marriage, this could indicate that voters there and in other parts of the country do not support issues they perceive as too liberal. Thus, the fight over Proposition 8 validates the concerns of some Democrats (myself included -- see this and this) who disagree with the idea that the party's electoral success proves that the country has shifted dramatically to the left and that social conservatism has become a relic of the past. Instead, Democrats have benefited from the ineptness of the Bush administration, the crisis in the economy (which is not completely the fault of Bush), and McCain's poorly run campaign.

Until Lehman Bros. collapsed, McCain and Obama were tied in most polls; some of them actually had McCain in the lead. The ensuing crisis on Wall Street caused many voters to shift to the Democratic ticket, following the same historical pattern of punishing the incumbent party for the nation's economic woes. The swing voters have turned to the Democrats to fix the economy -- not because they want them to implement a far left social agenda (just for the record, I consider myself far to the left of most Americans, including most Democrats). California's same-sex marriage debate should serve as a wake-up call for those liberals who continue to celebrate the defeat of U.S. conservatism.

If Obama wins, as most polls predict he will, and if Democrats expand their control in Congress, the party will have to govern a country that remains center/center-right. This will undoubtedly require compromise and caution. Many Democrats, however, have acted as if a new liberal utopia has arrived, now that we have slain the Bush-Cheney dragon. A sober assessment of the political landscape, however, tells a different story.

Sunday, October 26, 2008

A new Associated Press article reports the opening of an anti-abortion pharmacy in Chantilly, Virginia. The store, Divine Mercy Care, will not sell contraceptives -- or sodas and candy. Given the prominent displaying of candy in the local drugstores here in Washington, DC, Divine Mercy Care is potentially forsaking a cash cow.

Arlington Biship Paul S. Loverde presided over a ceremony "blessing" the store. Loverde said that the store would "allow families to shop in an environment where their faith is not compromised." I am not a religious expert, but it is not immediately clear to me how merely shopping in a store that sells contraceptives could impact a person's faith. By that logic, going to a hospital could compromise an individual's faith.

I cannot imagine any legal issues this store presents, although similar stores have committed infractions by refusing to fill prescriptions for birth control -- and refusing to transfer the prescription to another store (which seems unethical and illegal). Despite the legality of the store, local abortion rights advocates are organizing a boycott. Given the conservative politics of Chantilly, I am not sure how much business the store will actually lose from the boycott.

The prospect of a Democratic sweep in Novemember has both parties running madly. The Republicans fear this outcome, while the Democrats are salivating. In a prior blog post, I argued that even if the Democrats win the White House and expand their control in Congress, the political ideology of the country would prevent them from moving too far to the left (unlees they want a midterm rebellion).

Now, apparently sanity has captured other Democrats. The New York Times has published an article on the political constraints that would limit the Democrats, even if they controlled all of the national government. In particular, the presence of moderate and conservative Democrats in Congress might preclude a wide ideological shift. The article quotes former Vice President Walter Mondale, who served in the Carter administration when Democrats controlled Congress and the White House. Mondale discusses the difficulty of passing a liberal legislative agenda, even with Democratic dominance. The article does not report Carter's opinion on this matter, although presumably the reporter sought his opinion. It is worth a read, if merely for some balance during this time of melodrama.

Saturday, October 25, 2008

ABC News has taken on the subject of media bias, and concludes (drum roll) that it exists! According to an article by columnist Michael Malone, even some Democrats have now joined the chorus of Republicans complaining about uneven election coverage. Well, I am definitely a Democrat, and I have complained about the coverage here and elsewhere. But I hold the media in very low esteem anyway. Apparently, Britney Spears, American Idol, and Anna Nicole Smith intrigue them more than serious reporting. So, I'm not surprised that they cannot do serious investigative reporting and instead just run with their emotions.

ABC News is reporting that a Democratic presidential campaign event featuring Bill Clinton and Barack Obama will take place tonight in Florida (see this link). Apparently, I am the only person (or irreverent liberal lawyer in DC who does not want to work in a newly ensconced Democratic regime) in the blog world who wants to poke fun at the pure politics behind Obama campaigning with the Clintons after his supporters, surrogates and the media lambasted them as racist, divisive, wanting Obama assassinated, blah, blah -- and the Clintons campaigning with someone they deemed an inexperienced upstart. I wrote a sarcastic blog entry on this earlier. Check it out if you like.

Wow! Ever since the Gators suffered an embarassing -- and unusual -- one-point loss at home to Ole Miss, any team that has had the nerve to step into the Swamp has paid dearly. First, the UF whipped LSU 51-21. Now, Kentucky has paid for the Ole Miss defeat.

Go Gators. And go Ohio State and Oklahoma State! If you know the BCS, you know what I'm talking about.

Disclaimer: This is a law and politics blog, but I was born in Gainesville....So deal with it.

Friday, October 24, 2008

Last year, after Joe Biden opined that Barack Obama was the "first" black presidential candidate who was articulate, smart and telegenic, I concluded that Obama would likely lose the election. My conclusion did not rest on some knee-jerk belief that "Americans are too racist to vote for a black man." Instead, the historical performance of blacks in statewide election contests did not bode well for his candidacy. Biden's statement simply provided gloss to my argument. My prediction triggered very passionate responses from my Democratic colleagues who accused me of lacking "hope." But my opinion rested on a fairly rational reading of U.S. electoral politics.

Despite the media's fascination with Obama's lead in most nationwide polls, presidential elections ultimately turn on the results of state-to-state contests. And historically, very few blacks have won statewide elections. For example, only two blacks, Deval Patrick and Douglas Wilder, have won gubernatorial elections. In 1990, Wilder became the first elected black governor when he won the Virginia gubernatorial contest by only .5% of the vote. Two years ago, Patrick won in blue-state Massachusetts -- a year when Democrats regained control of both the Senate and the House. P.B.S. Pinchback and Douglas Patterson served as lieutenant governors, before replacing incumbents. Pinchback served as governor during Reconstruction, and Patterson became governor of New York this year.

Results of U.S. Senate elections also demonstrate the thin record of blacks winning statewide elections. Although five blacks have served in the Senate, only three earned their seats through statewide elections. In 1966, Ed Brooke won the U.S. Senate contest in Massachusetts, making him the first black person elected to the Senate. Carol Mosely Braun of Illinois won the senate election in 1992, making her the first and only black woman to serve in the Senate. Barack Obama won the Illinois race in 2006 during the Democratic midterm elections sweep. Two other blacks, Hiram Revels and Blanche Bruce, served as senators during Reconstruction. Both, however, were chosen by the Republican-dominated Mississippi legislature for that role.

With respect to presidential elections, Jesse Jackson was the most famous and successful black candidate prior to Obama. Jackson ran in 1984 and 1988. Jackson finished second behind nominee Michael Dukakis in 1988, and he won 11 primaries along the way. Shirley Chisolm and Carol Mosley Braun also launched unsuccessful campaigns in 1972 and 2004, respectively.

Against this historical backdrop, Obama's candidacy emerged. Although the country has certainly made progress in terms of race relations, race continues to influence voter attitudes. Despite the poor historical record of blacks in statewide election politics, when the Democratic primaries first began, many Obama supporters rejected as utterly cynical the assertion that race would hinder his electability. Ironically, many of those same individuals have invoked racism to rebut critiques of Obama by Hillary Clinton and John McCain and have offered racism (rather than class, gender or other factors) as the only reason why he lost several election contests to Clinton.

Recently, some commentators have argued that only racism could cause Obama to lose the election, but this argument overlooks the fact that since Franklin Delano Roosevelt, the Democrats have only elected one president (Clinton) to two terms. Also, since 1964, Democrats have only won three presidential elections. Clinton won two of these, and Carter, who received a mere 50.1% of the popular vote, won the other, running against Gerald Ford who received harsh criticism for pardoning Richard Nixon. The Democrats simply have not had much success in presidential candidates since 1964. So race might explain why some people, but not all, would decline to vote for Obama.

The intense scrutiny of race and politics during the year's election cycle leaves the impression that race has never mattered in presidential politics until this year or that it only impacts candidates who are not white. But to assume that race has not impacted presidential elections until 2008 would grossly distort the history of U.S. politics. Race has substantially affected prior elections and has, naturally, impacted white candidates. Distinguishing racism against a particular candidate from the issue of race relations helps illuminate this point.

Race, Reconstruction and Presidential ElectionsDuring Reconstruction, the presence of federal troops in southern states allowed blacks to exercise their political rights. At the time, virtually all black votes went to Republican candidates, and blacks who won elections were all members of the Republican Party. The Democratic Party, by contrast, had a monopoly on the white southern vote.

As the southern states were "redeemed" and re-admitted to the Union, Democrats slowly regained more and more power in southern governments. In 1876, the presidential election between Republican Rutherford B. Hayes and Democrat Samuel J. Tilden was closely divided. Tilden won the popular vote by a 51-48 margin, but the electoral college was in dispute due to a controversy over how to allocate votes from Florida, Louisiana, and South Carolina. The elections in those states involved a large degree of violence against black voters and whites who supported Republicans. Previously, President Grant had responded to election-day violence by dispatching federal troops to polling places, but that year, his advisers convinced him to refrain from doing so, believing that this would harm the electoral performance of Republican candidates. Just a few years after the Civil War, the public had grown intolerant of federal efforts to quell southern racial violence. The "Compromise of 1877" gave the election to Hayes, on the promise that he, as president, would remove troops from the South. Although Hayes eventually won the election, race contributed to his popular vote loss, but his concession on race and Reconstruction ultimately gave him the victory. When Hayes assumed office, he withdrew the remaining troops from the South. After the demise of Reconstruction, blacks would not vote in significant numbers in the South until the passage of the Voting Rights Act in 1968.

The New Deal Coalition and RaceFranklin Delano Roosevelt's political dominance from 1933-1945 relied on a coalition of southern white Democrats, blacks and other people of color, liberals, urbanites, labor, and religious minorities. The "New Deal Coalition" secured victory for the Democrats in seven of nine presidential elections from 1932 to 1964. Roosevelt gained support of nearly 80% of blacks, who abandoned the Republican party due to Roosevelt's liberal economic policies, which drew mass appeal following Republican Herbert Hoover's presidency and the Great Depression. Roosevelt's scattered embrace of civil rights would keep blacks within the Democratic Party -- and blacks' growing political leverage helped to secure those sporadic gains.

The only blip in Democratic success during this area came when Dwight D. Eisenhower won the presidential elections in 1952 and 1956. Smartly, Eisenhower maintained the New Deal policies and supported civil rights, including the 1954 Supreme Court decision Brown v. Board of Education, which a majority of the public also favored. The opinion, however, sparked massive southern resistance.In 1957, Eisenhower dispatched federal troops to enforce desegregation of Little Rock High School -- amidst international coverage of racial violence and harassment of black students. Eisenhower received far more black support than any of Roosevelt's Republican challengers, but he never received a majority of black votes.

Race, the Great Society, and Southern Political RealignmentAfter a century of Democratic dominance in the South, a dramatic realignment took place after 1964. When Lyndon Baines Johnson signed the Civil Rights Act of 1964, he accurately predicted that the Democrats would lose the South for a generation. Johnson probably did more in terms of promoting and endorsing civil rights than any other president in U.S. history -- although Kennedy tends to receive more praise and attention from liberal elites. Johnson's efforts shattered the New Deal coalition and ushered in decades of Republican dominance in presidential politics.

In 1964, Johnson signed comprehensive civil rights legislation, which was already proposed while Kennedy was alive. But Johnson lobbied for and implemented far more civil rights and antipoverty measures than Kennedy ever proposed or endorsed. Many leftists demonize Johnson due to the Vietnam War, but in terms of advancing the status of blacks, he did much more than Kennedy -- or any other presidents since Lincoln and Grant.

Johnson's "Great Society" programs expanded the government's role beyond the New Deal. The legislation included the Voting Rights Act, which enfranchised blacks in the South. Johnson's administration also spent large amounts of money on education, which was a priority in his legislative agenda. His administration created federal student loans and work study programs; it also founded the National Endowment for the Humanities and the National Endowment for the Arts. Johnson launched a War on Poverty, which expanded the New Deal initiatives in addition to taking on new projects, such as adding Medicare to the Social Security Act, creating Head Start, and forming the Department of Health, Education, and Welfare (now Health and Human Services). Johnson also nominated Thurgood Marshall, a prominent civil rights lawyer for the NAACP Legal Defense and Education Fund, to the Supreme Court. Marshall, a definite liberal, became the first black Supreme Court Justice.

Johnson's programs solidified black support for the Democrats, but they also caused "white flight" from the party. Beginning in 1968, a white backlash from the Great Society programs caused a southern political realignment, which has cost the Democrats a string of presidential elections. The Deep South effectively turned red.

Although nonracial factors explain some of the shift in southern political alliances, race issues do so as well. Southern whites vehemently opposed civil rights legislation, integration, affirmative action, and other race-related policies that the Democrats promoted. Consequently, since 1964, no Democratic presidential candidate has won a majority of white voters nationwide. Jimmy Carter is the only Democratic Party candidate who has won a majority of all voters in a presidential election since 1964, but he won by a mere 50.1% of the vote. The Republican Party has received a majority of white voters in all elections since 1964, due largely to white southerners abandoning the Democrats. Only Clinton and Carter -- two white southern governors -- have won southern states since 1964. Gore did not even win his native state of Tennessee.

Race in a Post-Obama WorldIf Obama wins in November, this would mark a reversal of fortune for the Democrats, but it remains unclear whether his victory would usher in a new "liberal" trend in U.S. politics or whether it would only represent a momentary change. Although Obama's charisma, intellect, and excellent communications skills have helped him tremendously, the poor performance and disfavor of President Bush, the terrible state of the economy, the ineffective campaign of John McCain, public distrust of Sarah Palin, and a very Obama-friendly media have all combined to make victory a strong possibility for the Democrats. Obama's policy proposals do not rank as more liberal than Gore's or Kerry's. Thus, Obama's success does not seem to result from a fundamental shift in the nation's overall political ideology (for a more pointed discussion of this issue, see this link).

Furthermore, Obama still trails McCain in most southern states, which remain red by and large (even if closer than in previous elections). Also, the bulk of Obama's white support comes from women -- who traditionally vote for Democrats. And while the Democrats have registered many new voters and have beaten the Republicans significantly in this regard, a coherent political ideology does not unite those voters. They certainly want "change," which specifically, seems to mean ending the war and not having "a Clinton," "a Bush," "a Republican" or "a white guy" in office. Beyond that, it is unclear what will unite them. Unless this group develops into a reliable and cohesive liberal block, Obama and Democrats after him would face the same electoral landscape that has constrained the party since 1964. Indisputably, an Obama victory would mark an historic moment in U.S. racial history. But as liberals contemplate and celebrate that moment, they should not forget that race has a very long history in U.S. politics. Because Obama's success has not altered the country's fundamental political ideology, race will remain an important factor in national politics in the foreseeable future.

Thursday, October 23, 2008

Earlier this year, I caused anxiety among a few of my dearest friends with my unrelenting critiques of media sexism against Hillary Clinton. To them, Clinton was either ideologically too "problematic" to warrant feminist intervention or "it wasn't about sexism, people just hate that woman." Well, this blog entry will probably make some of them explode, because I believe that the focus on Sarah Palin's wardrobe is sexist too. Liberals, however, do not care about this because she is conservative.

I never imagined I would be in a position of defending a conservative, anti-choice, anti-gay, woman from sexism. But after witnessing so much sexism (and class bias and racism) during the Democratic primaries and so little critique of it from the so-called left, I'm already on a roll. During the primaries, Clinton's pantsuits caused an usual amount of media discourse on the candidate's clothing. Many women have already noted that men too wear "pantsuits," but do not receive attention for doing so. Now, the airwaves are ablaze over the RNC's purchase of $150,000 in clothing for Palin to use in campaign appearances. My first response was: "why is this even interesting." Given the state of the economy, war, and other problems, this hardly warrants attention. But then I decided to give the subject more attention by examining its sexist dimensions.

Why Is This Sexist?

Focusing on and ridiculing Palin's clothing purchase is sexist in a very basic way: it treats women candidates differently then male candidates and in a negative fashion. I do not recall much attention at all -- certainly no negative attention -- on the clothing of male candidates during this election year. Indeed, I only recall two moments of media coverage of a male candidate's clothes -- and in both of those instances, the analysis complimented the candidate. One round of articles focused on the very exquisite suits Obama wears, and later CNN shamefully posted video footage of a "cool" Obama in jeans, which soared across the web. Other than that, most of the media's clothing scrutiny has centered upon women candidates, and it has often been unflattering.

Analyzing women's clothing -- and not men's -- is also sexist because it focuses on their appearance, rather than intellect, talents and qualifications. One of the oldest sex stereotypes deems women as better "seen" than "heard." Historically, women could not vote because the men who ruled this country believed that they lacked the intellectual capacity to make an intelligent choice. Women, they argued, would only vote based on their emotions or, to the extent they were married, would only do what their husbands directed them to do. This stereotype lurks subtly in the pantsuit and Neiman Marcus fascination.

Why Do I Care About This?

With all of the serious problems in the world, one might wonder why I chose to analyze this issue -- even if Palin has indeed experienced some sexism. I am compelled to discuss this matter because sexism (and racism, homophobia, classism) among liberals is especially troubling. Liberals -- especially Democrats -- believe they are advanced on issues of discrimination -- and at their finest moments, they are. They want to control government in order to improve the lives of people who are disadvantaged. They shun the "hateful rhetoric" of conservatives. They want to strengthen civil rights legislation and enforcement. Great talk, and I share those goals. But if liberals exhibit the same type of biases that they purport to oppose, then they ultimately lack credibility on these issues and come across as opportunistically advancing discrimination concerns simply to ensure electoral support from women, people of color, the poor, and gays and lesbians. Paying lip service to antidiscrimination concerns is only marginally better than doing nothing at all.

The problem with liberal bias goes beyond sexism. When liberals attack "uneducated" (they really mean not having attended college or graduate/professional school) voters as not being sophisticated enough to vote, they stigmatize the poor and many people of color. When liberals use labels such as the "latte" or "lunchbucket" voters -- and describe the latter disparagingly -- they do the same. And when they mock people having to purchase clothing to run for office, they show a great deal of hypocrisy on issues of class; any poor person who could have the fortune to make it on a national ticket would require a large clothing allotment, given the fascination with appearance -- especially of women -- in this vain society.

If liberals truly believe in an unbiased and egalitarian society, then they should take the lead and demonstrate those ideals in their own lives. Until they do this, I will remain cynical regarding the prospect of progressive change if and when the Democrats sweep into national power.

Wednesday, October 22, 2008

Last week, I posted a blog entry analyzing a poll from Rasmussen Reports which shows that a majority of voters believe that the major networks' election coverage is biased. Today, the respected Pew Center released a study that also concludes that the election reporting has been skewed -- in favor of Obama. Unlike the Rasmussen study, which relied upon the opinions of viewers, the Pew Center study scrutinizes the content of the coverage and considers whether it is positive, negative or neutral.

The study finds that compared to previous elections, Obama has received a standard amount of positive coverage, but has not received much at all in terms of negative coverage. McCain and Palin, however, have received negative coverage that exceeds the amount in most election cycles. What about Joe Biden? The study finds that he is an afterthought. The Pew Center's Project for Excellence in Journalism conducted the study. It is definitely worth reading, especially if you tend to think the media have fallen into an abyss.

The elderly vote faithfully. When pollsters survey "registered elderly voters," they may as well call them "likely elderly voters." Because of their high electoral participation, candidates from both parties court older voters. They also try to attract younger voters, but this group has a very poor track record of showing up to the polls.

Because they do not ordinarily work, older workers pay close attention to health care, social security, and other issues that impact their class more substantially than others. For this reason, social security remains a sacred cow. You cannot touch it. Getting rid of social security is not a reality. Privatizing it remains unpopular. Increasing taxes to pay for it, gets some attention, but remains unpopular. Obama has said he would increases taxes on workers making $250,000 to help subsidize social security, but this probably will not do much to solve the problem. McCain strikes back with typical Republican anti-tax rhetoric, but provides no solution himself.

A recent article by Robert J. Samuelson, a writer for Newsweek and the Washington Post, offers a sober perspective on social security and the presidential election: due to the need to attract older voters, neither candidate will offer an honest take on the state of social security. The article is definitely worth a read. Here are some highlights:

* The basic ways to fund social security for the increasingly large population of beneficiaries is to reduce payments, limit the ages of eligibility, orincrease medicare co-payments or deductibles, but Obama rejected all threeoptions, while McCain has remained silent;

* It is unfair for today's workers making over $250,000 to pay higher taxes to subsidize the retirement income of elderly people making over $250,000;

* Calls on young people to protest the candidates seeking their votes, but ignoring their interests.

The analysis sounds interesting, but theoretically a tax increase could help maintain benefit levels. Samuelson says that would be too draconian. I also wonder what percentage of retirees have incomes of $250,000 or above, but still receive social security, and how substantial the amount is that they receive. I assume this does not represent the largest chunk of beneficiaries. Nevertheless, the article provides some interesting insight -- something that is a rare find in the morass of reporting today.

The Associated Press has released a stunning poll, which shows that McCain has closed the gap in the presidential race to a mere one point. Ever since the Lehman Bros. implosion, Obama has led in all major polls. But last week, many polls suggested that the race contracted a bit, although results from earlier this week again reflected a large lead for Obama. In addition to the close AP poll, today's GWU Battleground survey shows a two-point race. In most polls, however, Obama has a very comfortable lead.

In the AP poll, McCain's gains were primarily among white middle-class voters. Perhaps McCain is experiencing "Joe Mo'." But the presidential election is a state-to-state race, and a majority of the polls show Obama leading in most of the swing states. Despite Obama's persistent lead in the swing states, Democratic Governor Charles Rendell of Pennslvania has urged Obama to return to the state, along with Bill Clinton, and McCain has committed a lot of resources to winning Pennsylvania. These facts have caused some analysts to question whether the Hershey state is tighter than the polls demonstrate. Pennsylvania has voted for the Democratic contender in each election since 1988, but Kerry only won the state by 2.5% over President Bush. A surge of new Democratic registrants, however, bodes very well for Obama.

Tuesday, October 21, 2008

Keeping with the theme of this blog, I have decided to critique the dramatic commentary coming from liberal and conservative circles about the implications of a likely expanded Democratic majority in Congress and probable victory for Barack Obama. Democrats are getting ready to dance in the streets, while Republicans have assumed a "Red Scare" posture. On the sidelines, I watch with alternating amusement and astonishment. Both sides exaggerate the significance of a Democratic victory - particularly when they analogize it to the period of massive legal and social change in the 1960s.

Republicans Channel Paul Revere: "The Liberals Are Coming, the Liberals Are Coming!"The editors of the Wall Street Journal set off a rallying cry last week, in an opinion piece predicting gloom and doom from a "liberal supermajority." The WSJ predicts that a Democratic Executive and Congress, including a filibuster-proof Senate, "would mark the restoration of the activist government that fell out of public favor in the 1970s." I guess it would also replace the activist government that fell out of public favor in 2008. I wrote about this opinion piece in a previous blog entry.

On the campaign trail, McCain and Palin have already insinuated that Obama's economic policy resembles European socialism. Now, as the San Francisco Chronicle reports, McCain's campaign has decided to raise the specter of full Democratic control of the national government as dangerous. Despite the fact that the Republicans have controlled Congress, the White House, and the Supreme Court for many years, they will shamelessly market the virtues of divided control. So, expect to hear more soundbites about the perils of the Obama-Pelosi-Reed triumvirate.

Democrats: We Believe We Can Fly!The Democrats, on the other hand, are salivating from the implications of a clean sweep. For some time now, liberal commentators have gleefully predicted the demise of the Republicans and the establishment of a liberal utopia. Earlier this year, New York Times columnist Frank Rich wrote a eulogy, masquerading as political commentary, remarking on the death of the Republican Party. Rich opined that "the G.O.P. looks more like a nostalgic relic than a national political party in contemporary America. A cultural sea change has passed it by." Rich predicts that a "national rout in 2008 just may be that Republican Party’s last stand." Obama supporter Jonathan Alter of Newsweek has written a similar, but more guarded, column called "We're Heading Left Once Again," in which he asserts that Obama "would have a fighting chance to move the country to a new place, or at least one we haven't seen for a while. Leftward ho!" Finally, Washington Post columnist Richard Cohen has a "hot from the press" article entitled "Party Like It's 1964." Cohen argues that Bush and McCain have "constructed a mean, grumpy, exclusive, narrow-minded and altogether retrograde Republican Party." Accordingly, the GOP has earned its fate: life in the "political wilderness."

My Take: Both Sides Are Just Wrong
Republicans lament the advent of U.S. socialism, while Democrats prepare to build a new "Great Society." From both of these notions, I respectfully dissent. Despite all of the passionate predictions of an impending liberal takeover of the country, both sides overstate the significance of a Democratic presidential victory, even one connected to an expanded liberal majority in Congress. Here's why.

The Country Remains Right of CenterDespite the apparent resurrection of the Democratic Party as a contender for the White House, the Country remains right of center. And if you compare aspects of American social policy with other liberal democracies, the country's political core looks solidly conservative. If the Democrats want to get re-elected -- which is likely their paramount goal as politicians -- then they will have to operate within the constraints of that political reality. Any sweeping liberal change will receive stiff resistance. Certainly, any costly liberal policy proposal will receive even louder opposition. Bush and the Republicans engaged in excess, and they are paying for it. Smart Democrats like Obama will avoid this at all costs -- not by building a coalition for radical change -- but by aiming for the middle.

When Clinton was elected in 1992, my liberal colleagues were similarly exuberant about the possibilities of a liberal shakeup of the country, although with Obama, liberals have become absolutely ecstatic (translation: unbounded from political reality). But the nasty reaction to Hillary Clinton's vanguard effort to create a national health care system and the backlash -- led primarily by Colin Powell -- against Bill Clinton for attempting to lift the ban on gays and lesbians in the military -- gave people an early wakeup call. Merely electing a Democrat does not mean that the electorate has fundamentally changed with respect to political ideology.

Many commentators have also neglected to consider that Obama actually trailed or tied McCain in most polls until Lehman Bros. collapsed. When several other financial institutions imploded, Obama reclaimed the lead, which has only sharpened. This change in his fortune surely does not mean that the country has become suddenly left or center-left. Instead, non- or less-partisan voters are simply doing what they have done throughout American political history: They are blaming the incumbent and the incumbent party for poor economic conditions. On top of this historical skepticism towards incumbents during bad times, Obama has successfully blamed Bush for the financial crisis -- even though this is a major distortion (as FactCheck.Org documents). The economy -- not a new liberal electorate-- has placed Obama on top of the polls.

An Election Alone Is not a Social MovementObama's rallies are filled with thousands of supporters. Scores of new voters have registered as Democrats, many due to the appeal of both Democratic candidates during the primaries. Obama has formed a coalition of liberal/leftist elite whites, blacks (who were already the most faithful Democrats), women, young people, and some moderates. Several commentators have argued that these changes will lead to the implementation of much more liberal social policy -- just like in the 1960s. This is not necessarily true.

Many of the changes that occurred during the 1960s happened because of very sustained, sometimes even violent, political activism and unrest. Although Clinton was right in saying it took a president to sign the Civil Rights Act of 1964, she should have also cited her earlier work, because a very large "village" helped create the political conditions that ensured passage of the law.

The implementation of the 1960s legislation that prohibited discrimination in areas of employment, voting, the usage of federal money (the denial of which would have crippled segregated schools), and access to places of public accommodation, resulted from decades of social movement activity. It also resulted from a remarkable alignment of domestic leftist interests with the national government's need to project a good image into the international community. The U.S. justified its Cold War policing of foreign countries on the need to fight totalitarianism and fascism. News of racial terrorism and discrimination against U.S. blacks, which the Soviet Union rapidly distributed to other countries, disrupted the attainment of this latter goal.

Comparing the 1960s with the current situation does not reveal many parallels. Granted, young people are passionate and fed up with the current government (just like most other people). But many participants in the current Democratic resurgence have united in order to secure the defeat of Bush (Cheney-Rumsfeld-McCain-Rice-Powell*), rather than to accomplish a broad set of liberal social policies. During the primaries, the media joyfully reported Obama's victories in a string of red states, where he often secured the vast majority of white votes. But it remains unclear what beyond electing Obama and ending the war unifies white Democrats in Wyoming or Utah with blacks in Brooklyn, and gays and lesbians in San Francisco. These groups view the Democrats as a healthy alternative to the Republicans. But outside of ejecting the Republicans from leadership, wanting change is merely a political slogan, not a political movement. Desiring something new does not transform what already exists.

Obama Is Not Wildly Liberal Compared with Other DemocratsDuring the Democratic primaries, Obama supporters, especially blogs such as HuffingtonPost, Daily Kos, and Mother Jones, vehemently worked to distinguish Obama and Clinton ideologically. Clinton was just "more of the same." She was, gasp, almost a Republican. Her war vote, Obama said, showed a lack of judgment. To his supporters, it proved that she was a shameless hawk. Even when commentators like Paul Krugman said her health plan was more progressive than Obama's, his supporters said that she was lying anyway and would not work to achieve it. Some of them (and the Obama team as well) said that it would "force" people to participate, which sounded a lot like the Republican rejection of "Hillarycare."

Once the primaries ended and polls showed that many of Clinton's disgruntled supporters intended to vote for McCain or neither candidate, their rhetoric turned around completely. Instead of being a Republican in Democratic clothing, Clinton held the exact same position as Obama on all social issues. Accordingly, PUMAs would betray their party and preferred candidate's life work if they voted for McCain. So is Clinton now wildly liberal like Obama or is Obama less progressive than his supporters claimed? Probably a little of both.

Obama is a great politician and lawyer, which has led to much of his success. He knows how to embrace policies specifically enough to show commitment, but always leave room for nuancing his stance later. A lot of Democrats in the past, like Gore and Kerry, could not do this effectively. Bill Clinton, on the other hand, could. Part of it comes from being a lawyer and knowing that "is" can have multiple meanings.

Outside of abortion, where Obama has a very consistent record of progressive voting, it is unclear what other liberal area he is as far to the left as his supporters portrayed him during the primaries. For example, he is against the war, but so are most Americans. He believes in multilateral foreign relations, but this is hardly a novel idea for the U.S. He campaigned on universal health care, but so did all of the other Democrats, and it is unclear whether the electorate will support this policy under a time of economic hardship. He took the position that the Supreme Court should have authorized the death penalty in rape cases -- even though the history of applying capital punishment for sexual assault follows a horribly racist pattern. And he supported the Supreme Court's recent Second Amendment ruling, which found an individual right to bear arms sufficient enough to defeat Washington, DC's ban on handguns. Obama, like Bush and McCain, does not support same-sex marriage, but endorses local efforts to make it a reality. It appears that Obama can chase the center, middle, and right -- just like Bill Clinton, the original triangulator.

Furthermore, despite Obama's opposition to the war and his view that supporting it shows a lack of judgment, Obama selected Biden -- who voted for the war -- as a running mate. Despite his slamming of Clinton for supporting NAFTA, Biden actually voted for the legislation, which Obama himself says he will not seek to repeal. Biden also voted for the bankruptcy reform legislation, which Obama derided as showing a lack of compassion to consumers. Also, while Democrats blame (wrongfully) the Gramm-Leach-Bliley Act for the current financial crisis, Obama has called upon Clinton's former Secretary of Treasury Ron Rubin for economic advice. Rubin supported Gramm-Leach-Bliley, and he is currently a Director of Citicorp, one of the largest beneficiaries of the legislation.

Finally, Obama recently accepted Colin Powell's endorsement, despite Powell having delivered one of the most compelling arguments to the United Nations for the war. Powell's dissertation on the war utilized forged materials, which purported to document Iraq's effort to obtain uranium from Niger. Powell also orchestrated political opposition to Clinton's effort to lift the ban on gays and lesbians in the armed forces, which gave us the terrible "Don't Ask, Don't Tell" compromise. Nevertheless, Powell's endorsement has received almost universal praise from Democrats. Obama's negotiation and acceptance of the endorsement is brilliant from a political perspective. But it does not fit with the narrative of a leftist politician who will fundamentally change the U.S and who hates all things related to Bush and his war.

Only White Old Heterosexual Males Are Predicting the Demise of White Old Heterosexual Male PowerFinally, I think it is worth mentioning that only white old heterosexual males have predicted the demise of white old heterosexual male power. Joining Rich, Alter, Cohen and McCain, Alec Baldwin recently asserted that Obama's election would neutralize racism and kill the civil rights movement. Most of the commentators and politicians I have seen who believe that November will usher in a leftist regime that will grip America and slay old white power are part of that demographic themselves, regardless of political affiliation. Why is that? Perhaps because women, people of color, the poor, and gays and lesbians know from personal experience that meaningful progressive change does not happen overnight. Perhaps it is because we know that creating equal opportunity still requires a lot of work. Maybe it is because having just witnessed a plenty of crude sexism, racism, and mocking of poor uneducated voters from so-called liberals during this election cycle, we cannot imagine a Democratic victory causing substantial progressive change. I hope our cynicism goes too far, but for now, I am sticking with history and my own instincts. Accordingly -- Republicans should: "Chill out!" You are down, but not done. And Democrats should: "Put down the pom poms and start doing the hard work of building effective social movement activity, which actually involves some very honest and open political debate and self-criticism.

Sunday, October 19, 2008

Yesterday, former Secretary of State Colin Powell endorsed Senator Barack Obama in his presidential bid. Speculation of the endorsement percolated on the Internet for days prior to the official announcement. In a prepared statement, Powell's said that he was upset with the "tone" of McCain's campaign, specifically mentioning its reference to Ayers. Similarly, during the Democratic primaries, many of the people who endorsed Obama over Clinton condemned her "tone." I assume the Obama campaign prepares these statements. They are great political narratives, because they allow others to say that Obama's opponent is, basically, nasty.

Powell's endorsement also comes while some voters debate Obama's recent statement to Joe the Plumber that he wanted to "spread the wealth around." Conservatives have officially gone into "red scare" mode, while Ayers continues to receive attention as well. Recent polls show Obama with a commanding, yet shrinking lead, perhaps due to Joe and taxes. Powell's endorsement could potentially move the public discourse away from these matters. Obama's campaign employed a similar strategy during the Democratic primaries, when it often announced endorsements and superdelegate support for Obama during soft moments for the candidate (including Wright and various primary defeats).

Although it remains unclear whether Powell's endorsement will influence voters, it does present some interesting points of analysis. The endorsement cannot harm Obama politically, but for some progressives, it could raises questions about where Obama will govern as president (center, right, or left).

Powell's Endorsement: The Upside

The endorsement has a lot of potential upside. Powell has even higher approval ratings than McCain and Obama. He is well regarded by persons across the political spectrum. He has great foreign policy and military experience. Because he is a Republican who served in the Bush administration, his endorsement looks like a huge slam to McCain. Powell's endorsement might help comfort moderate voters who doubt that Obama possesses sufficient experience to serve as president. Because of the potential upside, the endorsement serves a lot of strategic purposes.

Powell's Endorsement: The Downside

Although Powell comes with a lot of positives, I think that if people actually probed all of the issues it presents, they could come up with some downsides too. Powell's endorsement -- or Obama's acceptance of Powell's endorsement -- could undermine Obama's credibility regarding his opposition to the war. During the primaries, Obama said that Clinton "lacked judgment" because she voted for the war. He said the same about McCain during the presidential debates. But Powell actually sold the war to a skeptical public and in the process, mislead Americans and the international community about Saddam Hussein's danger to the United States. Powell was in the center of the Bush administration -- a regime that Democrats have long wanted to change.

Obama's antiwar message excited many left-leaning and solidly left Democrats, who thought that Clinton was either too hawkish or a dove who voted for the war due to political expedience. But since the conclusion of the primaries, Obama has picked Biden as a running mate and has humbly accepted Powell's endorsement (presumably after negotiating it). Biden voted for the war, and Powell gave credibility to Bush's demand for authorization to use force against Iraq.

This will not harm Obama politically, because Obama is not Powell, and most people are not focusing on the war at the moment. Also, outside of leftwing blogs, I imagine this aspect of Powell's endorsement will receive very little attention. Nevertheless, it still contradicts Obama's very powerful antiwar/anti-Bush narrative and gives another layer of complexity to Obama as a political figure.

A Final Thought: Powell and Gay Rights

Powell, as Chair of the Joint Chiefs of Staff, played a very large -- if not the largest -- role in defeating Bill Clinton's plan to lift the ban on discrimination against gays and lesbians in the military. Powell said that the military could not maintain troop cohesion and order with gay soldiers, and he singlehandedly rebuked activists who analogized the military's homophobia to racism. The debacle over the anti-gay policy emboldened conservatives to attack Clinton almost neurotically, and it probably made Clinton even more committed to centrist positions than he already was. Because the military question came so early in his presidency and caused such a tremendous amount of outrage, Clinton accepted the "Don't Ask, Don't Tell" compromise, which perpetuates the silencing of gays and lesbians. Although some recent journalistic accounts suggest that Powell has softened on this issue over time, many gays and lesbians who engaged in advocacy on the military issue might view his endorsement less enthusiastically than other Democrats. Obama, however, does not intend to use Powell's endorsement to secure gay and lesbian and other liberal voters; instead, it is designed to attract uncommitted and undecided moderate-to-conservative voters.

Saturday, October 18, 2008

One of the things that perplexed me the most during the Democratic primaries was the portrayal of the Clintons as "divisive," a charge that made Hillary Clinton unfit for the presidency. Many of Obama's younger supporters, following his lead, said that Clinton represented "failed politics" of the past, that she would just bring "more of the same" and that all she knew how to do was fight. Obama, they said, offered a "fresh face" and practiced a new form of politics that would unify the country and the world. Recently, Obama himself said he would, in fact, change the world.

I absolutely agree that the Clintons incite rage among Republicans and that this probably means they are "divisive." But the notion that Obama could somehow escape Republican attacks and bring unity to the two parties seemed like a dubious claim. Some of my closest friends labeled me "too cynical" for making that argument, but in political analysis, I take the cynicism charge as a compliment rather than a slur. People who believed Obama would be immune from divisive partisan politics lacked an understanding of American politics or knowledge of American political history. I use the past tense because I cannot imagine rational people still holding the view that Obama can can seduce Republicans into nonpartisan bliss.

As the reality of a possible Obama victory sets in, conservatives are morphing into Paul Revere and warning all who will listen that the "Democrats are coming" to Washington with their leftist, socialist, and communist agenda (I devoted a previous blog entry to this issue). Furthermore, McCain, Palin, other GOP members, and conservative bloggers and commentators have turned up the heat and are making accusations about Obama that remind me of the almost psychotic conservative portrayals the Clintons during the 1990s. According to the lore, Barack Hussein Obama hangs with terrorists. Both Obamas are products of '60s radicalism. Obama is in bed with ACORN, which is a fraudulent, extremist and felonious entity. He has racist, American-hating friends and ministers. He is a socialist. He wants to take your money. He wants the government to run health care. He believes in infanticide. He tried to prevent troop reductions in Iraq. He is Muslim. He is not a U.S. citizen. He had an affair with a campaign staffer. He is a chronic smoker, who might have cancer. He hates the United States. He has engaged in campaign finance violations. He engaged in a shady land transaction with Rezko. Michelle hates the United States and is a black nationalist. Obama has ties to Kenya, Nigeria, and Indonesia (which presumably is wrong "just because"). Some of this stuff makes the whole flap over the flagpin look really tame.

Compare the growing list of charges against the Obamas with the Clinton-era smears, and you will find some interesting parallels. Here are some of the anti-Clinton zingers. Bill and/or Hillary murdered Vince Foster. Bill and/or Hillary murdered Ron Brown. Bill raped several women. Bill was a drug dealer. The Clintons were party to the shady Whitewater land transaction. Hillary Clinton wants socialized medicine. Hillary Clinton does not fit the image of a "First Lady" because she does not want to bake cookies. Hillary Rodam should be Hillary Clinton. Hillary Rodam Clinton will change her name to get her husband elected. Hillary Clinton committed a crime during "travelgate." Bill and Hillary are felons. Hillary Clinton does not deserve to be president because her husband cheated on her and she did not divorce him. Hillary Clinton is ambitious (I always want my presidents to aim low). The Clintons only lie. The Clintons represent all that is evil of the '60s.

Add to this of old dirt "the Clinton's are racist" and "Hillary wanted Obama assassinated" and you end up having the most despised political couple in American history. Well, a funny thing happened in Denver. "More of the Same" conceded to "Fresh Face." The Democratic Party offered political redemption to Bill and Hillary and possibly a bailout of Clinton's campaign debt (details forthcoming?). In exchange, the Clintons promised to campaign for Obama, deliver disgruntled Clinton supporters to party, and make unity speeches at the convention. Media now proudly report that the Clintons are campaigning for and with Biden and Obama and that they are headlining fundraisers for the ticket as well. Not too long ago, these same media compared Hillary with Tonya Harding and claimed that she she was a deranged pathological liar.

Many of Obama's supporters are voting and paying attention to politics for the very first time. This is a great advancement for the Democrats. But I wonder whether these young and excited O-voters are making the type of connections that this essay attempts to do. I wonder if they know that division is natural part of our two-party system? Have they come to grips with the reality that if Obama wins, the smearing will only get louder and the digging deeper? Do they now realize that political work is often messy -- even dirty -- and that meaningful, large scale change only comes through contestation and battle? If not, consider this a free introductory course.

About Me and the Blog

Professor Darren Hutchinson teaches Constitutional Law, Remedies, Race and the Law, and a Civil Rights Seminar at the University of Florida Levin College of Law. Professor Hutchinson also holds the prestigious Stephen C. O’Connell Chair.
Professor Hutchinson received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. Before teaching law, Professor Hutchinson practiced commercial litigation at Cleary, Gottlieb, Steen and Hamilton in New York City. He also clerked for the late Honorable Mary Johnson Lowe, a former United States District Judge in the Southern District of New York.
Professor Hutchinson's research has appeared in many prestigious journals including the Cornell Law Review, Washington University Law Review, UCLA Law Review, University of Michigan Journal of Race and Law, and University of Pennsylvania Journal of Constitutional Law.
He has also presented his research at numerous universities, including Yale, Stanford, Columbia, University of Pennsylvania, University of Michigan, University of California at Berkeley, University of Virginia, Cornell, Georgetown, and Boston University.

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